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Bava Basra, 53

BAVA BASRA 52 & 53 - these Dafim have been dedicated anonymously l'Iluy Nishmas Tzirel Nechamah bas Tuvya Yehudah.


QUESTION: The RASHBAM (DH v'Hashta) states that when the Gemara (52b) rules that an act of locking the door of a house is an effective act of Kinyan, it is referring only to when the purchaser of the house affixes a lock on the door. Merely closing the door and locking it with a key is not sufficient to constitute an act of Kinyan, because such an act merely indicates that he is protecting his friend's property and does not show that he is behaving like the owner of the property.

TOSFOS (52b, DH No'al) questions this ruling of the Rashbam. The Gemara in Gitin (77b) relates a case in which a deathly ill man wrote a Get to his wife on Erev Shabbos so that when he dies, his wife would not be obligated to do Yibum with his brother. The man, though, did not manage to hand over the Get to his wife before Shabbos entered. On Shabbos, the man's condition deteriorated. He was instructed to give to his wife the area in his house where the Get was situated, so that the Get would then be considered to be within the wife's domain and she would thereby automatically acquire it. The Kinyan of that part of the house was performed by the wife's act of closing and opening the door. Tosfos argues that it cannot be that in that case, the wife had to affix a new lock on the door, because such an act is prohibited mid'Oraisa on Shabbos and the Rabanan would not have permitted it. They only permitted making a Kinyan on the house, which is an Isur d'Rabanan on Shabbos. They permitted it in order to prevent the further deterioration of the husband's condition through worrying that his wife would have to perform Yibum.

How does the Rashbam understand the ruling in Gitin there? The Gemara there seems to prove that it suffices to lock the door and it is not necessary affix a lock on the door in order to effect a Kinyan!

ANSWER: The PNEI YEHOSHUA in Bava Kama (52b, commenting on Tosfos DH Keivan) answers that the Rashbam agrees that locking the door suffices if it is accompanied with the Kinyan of the seller handing over the keys to the buyer. The act of handing of the keys alone is not sufficient, because no act is being performed with the property itself. Locking the door alone is not sufficient, because it merely suggests that he is doing a Mitzvah of guarding his friend's property and does not show that he is acting in the manner of the owner. When *both* acts are done together, the handing over of the keys shows that the seller wants to sell his property to the buyer, and the locking of the door shows that the buyer is not merely protecting the seller's property, but that he is showing his ownership of the property.

The Rashbam states explicitly that because, in the case of our Gemara, the field is being acquired from the estate of a Ger who died with no heirs, there is no one who can hand over the keys to the person acquiring the field. Therefore, locking the door alone does not suffice. In the case in Gitin, though, the husband handed over the keys to his wife and she locked and opened the door. Since both acts were done, she was able to make a Kinyan on the property and acquire the place where the Get was situated. (Y. Marcus)


QUESTION: Rav Amram states that "Rav Sheshes taught us a Halachah and enlightened our eyes by citing proof from a Beraisa." The Halachah is that the act of spreading out sheets on the ground of the property of a Ger with no heirs is a sufficient act of Chazakah to make a Kinyan on and acquire the property. The proof that he cites is from the Beraisa which states that when a servant puts on or takes off the shoes of his future master, or performed certain other personal services, this is considered a Chazakah through which the new master acquires the servant.

The RASHBAM (DH Hetzi'a) explains that even though the act of Kinyan of spreading sheets does not involve making an improvement to the property itself, it nevertheless suffices as an act of Kinyan because the person thereby derives benefit from the property. Similarly, the master derives benefit from the servant attending to him, and therefore that benefit is a valid Kinyan.

The RAMBAM (Hilchos Zechiyah u'Matanah 2:2) states that even though eating the fruit of a field establishes a Chazakah and serves as an act of Kinyan when one buys a field from a fellow Jew, it does *not* suffice as an act of Kinyan to acquire a field from a Ger who died without heirs. The difference is that when one acquires a field from a fellow Jew, the seller has intention to be Makneh the field. In the case of the field of a deceased Ger, though, there is no owner to be Makneh the field to the person who wants to acquire it, and therefore a stronger act of Kinyan is necessary.

The LECHEM MISHNEH questions the Rambam's ruling from our Gemara. If there is a difference between the Chazakah required to acquire the property of a Ger and the Chazakah required to acquire the property in a normal transaction when purchasing property from a fellow Jew, then how does Rav Sheshes enlighten us with a proof for his Halachah from the Beraisa that discusses how a servant is acquired? That Beraisa is discussing the acquisition of a servant by virtue of the servant's service to the master, which is comparable to eating the fruits of a field in order to acquire the field from another Jew, which is a valid Kinyan -- in both cases, the owner (or the servant himself) has intention to be Makneh the property to the new owner. In contrast, spreading sheets on the ground of the property of a Ger -- which is comparable to eating the fruits of the field of a Ger -- is *not* a sufficient Kinyan to acquire the field from the Ger, since there is no one having intention to be Makneh the field to the new owner!

ANSWER: The OR SAME'ACH (Hilchos Zechiyah u'Matanah 2:2) cites the ruling of the Rambam later (2:17) that if a Ger dies without heirs and he leaves as part of his estate servants who are minors, the first person to perform a Chazakah on those minor servants acquires them. The Rambam concludes that "we have already explained the ways of Chazakah by which servants are acquired." He is referring to the Halachah in Hilchos Mechirah (2:2) which is based on the Beraisa cited by our Gemara, regarding the Kinyan made by having a servant attend to the master. We can infer from the Rambam's words that he holds that this Chazakah on servants is considered to be a *more* effective act of Chazakah than eating the fruits of the field, because he writes that it is a sufficient Kinyan to acquire the minor servants of the Ger. If this Chazakah on servants were no different than eating fruits of a field, it would not suffice in order to acquire the property of a Ger.

Indeed, the RASHASH states that when the servant attends to the master, it is considered as though the master has received an important usage of the servant, superior to eating fruits of a field (in contrast to the view of the Lechem Mishneh), and this is effective as a Kinyan Chazakah. Similarly, when someone spreads out sheets on the field of a Ger, it is considered as though he is preparing the ground for an important usage for himself, and therefore this act is an effect Chazakah to acquire the field. (Y. Marcus)

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